Legislative Tyranny
Benjamin Harvey Hill

The Government is divided into three departments, and separate powers given to each department for the great purpose of providing mutual checks and balances, so that no one department shall be able to destroy the Government.

Now, if either department can, by any means, absorb to itself the powers confided to the other departments, or of either of the others, it, by that means, gets to itself powers which it was not intended it should exercise; and can, by reason of this increase of powers, accomplish what the division of powers intended to prevent - destroy the Government. So, if either department, instead of thus absorbing to itself the powers of the other department, can, in lieu thereof, adopt some means by which it can compel or induce the other departments, or either of them, to execute its unlimited will, it can thus as effectually, and perhaps more conveniently, accomplish the forbidden end - destroy the Government - than if it had absorbed the powers to itself; because the department so compelled or induced to serve, ceases to be a check or balance to prevent destruction as was intended, but degenerates into a mere tool or aider and abetter in the work of destruction.

Here - right here - is precisely the process by which this fragmentary conclave of a Congress is destroying the Constitution and the Government under the Constitution.

They first excluded from both Houses all the representatives of ten entire States, because they were supposed not to be willing to the schemes of the majority making the exclusion; and, to make the exclusion effectual, they denied the right of representation to the ten States, all, in the teeth of the most explicit and positive provisions of the Constitution, declaring how the Congress shall be constituted, and of what the two Houses shall be composed. They next, under various transparent pretenses, excluded obnoxious members from other States.

This process of exclusion, continued until two-thirds of those remaining were of one evil mind. The executive Department, though earnestly denouncing the body as not organized as the Constitution required, yet recognized this fragment as the Congress. Thus organized and thus recognized, this fragamentary conclave - now become very bold and dictatorial - began to abosorb to itself the powers and functions of both the other Departments of the Government, and to threaten impeachment and remodelling and non-appropriation of salaries, if the other departments should presume to form checks upon its will. The President sent back, with his now ineffectual objections, the several steps of this conclave in the work of destruction, and accompanied those objections with an earnest patriotism and a fervor of meaning which have not been excelled. But why talk patriotism to traitors, or address reasons to fanatics, now conscious of their power to destroy, and of safety to themselves in the work? They would laugh and grin, and pass the bills to destroy the Constitution with the glee of the cat which plays with the contortions of its captured, dying mouse. In an evil hour the President consented - agreed it was his duty - to execute as law whatever two-thirds of this fragmentary conclave might desire, declare, or order!

Then I, and you, and all of us fell down
Whilst bloody treason flourished over us.

I have no doubt the President acted, in this matter, from the purest and most patriotic motives. His course was advised and commended by men distinguished for ability. He is surrounded by circumstances peculiarly responsible and embarrassing, and every desire of my heart is to help him and not to say anything that may weaken any man's faith in him. But the country is passing through a most fearful ordeal. Everything we all have or can hope for is involved. Errors may ruin though motives be angelic. On questions of policy or expediency, I love the yielding, conciliating spirit. I despise, from my heart, the bigot or the fanatic. But a principle - a vital principle - should never be abandoned for temporary relief, nor yielded to conciliate an enemy. The Constitution ought to be administered in a spirit of concession, but no man intrusted to administer it should allow its destruction upon any pretense. I do believe the idea that the President is bound to execute whatever a two-thirds majority of Congress may declare is the most fatal and dangerous error of this generation, not excepting secession, or coercion, or even fanaticism itself - the hideous mother of both secession and coercion. It is the error which, being committed, will be the greatest lever of strength to fanaticism, and which, not having been committed, would have been the death-blow to fanaticism and to all its hellish brood of horrors. I am not writing to please any man. I see - have no doubt, I see - unprecedented evils ahead of us. I firmly believe there is no way to escape these evils but by cleaving to the Constitution. In this crisis, I love all who cleave to the Constitution as I love my property, my life, my liberty, and the peace and happiness of my children, for by that Constitution alone can these blessings be enjoyed. I hate all who violate the Constitution as I hate the thief who steals my property, the tyrant who fetters my liberty, the murderer who seeks my life, or the monster who would destory all the hope for my children; because, in the destruction of the Constitution by force and fraud, all these curses will come. If the Constitution needs amendment, let us all - all the States - amend it; if free government has failed, let us admit it and form another, like men of reason and honesty. But whatever government and laws we have let us obey them while we have them, and not seek to evade them by fraud, or overturn them by force, for then we have anarchy, which means the utter absence of all safety and hope, and the actual presence of every danger, for person, property, liberty and life. Of all the enemies to individuals, to society, or to government, he who deceives and takes advantage of trusts reposed, or power conferred, to injure, slander, or betray, is the meanest, the most cowardly, and the most dangerous. Therefore I denounce the radicals and all their disciples. I know the President is a patriot, but his error threatens to place him and his country in the unrestrained and vengeful power of foresworn enemies, and he who believes it is an error, owes it to his country to say so and give his reasons for his belief.

In the construction of all human instruments there must arise questions on which men will honestly differ. These doubtful questions have arisen under the Constitution. It was anticipated they would arise, and arise, too, between the Executive and Congress, and the method of settling such differences was provided. When the President thinks a bill presented to him is unconstitutional, he must return it with his objections. Congress must reconsider it, and if two-thirds differ with the President, the bill becomes a law, notwithstanding the President's objections. Now, that this refers to cases of mere honest differences as to what is the meaning of the Constitution - to cases of doubt - is very clear from the deliberation which is required of all parties. The President is required to send his objections to Congress. The objections must be in writing. The House to which the objections are sent must enter them on their journal, and then proceed to reconsider. If two-thirds differ with the President, the bill and objections must be sent to the other House. The other House must also reconsider, and if, after all sides are fully heard, and the matter has been considered and reconsidered, two-thirds of both Houses differ with the President, the bill shall become a law. That is, in these doubtful questions, if two-thirds of both Houses, after full consideration of all sides, shall be of one opinion, and the President and one-third shall be of another opinion - the opinions of the two-thirds shall prevail. Such were the Bank and Tariff and Internal Improvement questions, and many others. In all such cases it is very manifest the President must execute the law until the Judiciary shall pronounce against it. The President cannot, himself, become the Court, or absorb to himself the functions of the Court.

This is the whole extent of the doctrine of the President's obligation to execute the laws. No more, no less.

Does this give two-thirds of the Congress power to subvert the Government, and is the President bound to help them subvert it? The Constitution, in separate clauses, defines what Congress may do, and then, by other clauses, declares what Congress shall not do. Doubts naturally arise in ascertaining the extent of the meaning in those clauses which seek to define what Congress may do. But suppose Congress undertake to do that which the Constitution says Congress shall not do? How then? If two-thirds say they will do it anyhow, is the President bound to execute it?

The Constitution says: "No bill of attainder or ex post facto law shall be passed." Suppose two-thirds pass a bill of attainder, is it a law? If so, two thirds of the Congress can annul the Constitution. If so, the will of two-thirds of Congress, and not the Constitution, is the supreme law. But the President is not bound to execute that which is not a law. The President admits the Sherman Bill is a bill of attainder against nine millions of people! How, then, can he be bound to execute that which the Constitution says shall not be done.

Suppose two-thirds of this conclave shall declare that the present patriotic Governor of Connecticut was not properly elected, because the colored citizens of that State were excluded by the laws thereof from voting in the election; and should then declare the government was provisional,and send a military commander there to govern the people until they should change their laws and hold another election, in which the colored citizens should participate? Must the President execute this order?

Suppose this two-thirds of the conclave shall declare that all elections, State and Federal, of persons not of the Radical or Republican party, are void, because such persons are not loyal, and shall reduce the people guilty of such disloyal elections to military subjugation - must the President execute the mandate?

Suppose two-thirds of the conclave shall declare that the President is disloyal, and he is, therefore, not a legal President, and is removed or not to be obeyed; must the Executive Department execute its own demolition? Suppose they say the Supreme Court is an obstruction to progress and is abolished; yea, more - suppose they shall declare, what they have often said, that the Federal Constitution "is a covenant with hell and a league with the devil," and that no State Constitution is republican in form, and that all shall be set aside, or declared only provisional, and the whole country shall be placed under military rule with commanders subject to the orders of this conclave, until new Constitutions, State and Federal, shall be approved by them; and in making which, all who agree with them shall be enfranchised, and all who differ from them shall be disfranchised, must the President be bound to execute this revolution or quietly look on and see the Government destroyed? All these things some of this conclave have declared ought to be done, and have threatened to do! More than all these they have done, and are now actually doing for ten of the States. Why may they not do so for all? The power is the same over all that it is over one. They OUGHT to do so for all or for none. They send a single officer to Virginia, who is not even a resident of the State, and claim for him power to repeal the laws passed in the days of Washington and by the voices and approval of Jefferson, Madison, Monroe, and Marshall; and a similar non-resident individual, by his own irresponsible edicts, sets aside whole constitutions and codes in the States of Macons and Pinckneys, and proclaims others in their stead, in a manner more summary and arbitrary than any monarch in Europe dare exhibit! All this is admitted to be plainly, grossly unconstitutional but it must be done, and the President is bound to see to it that it is done, because two-thirds of this conclave says it must be done!

Thus, not only two-thirds of a Congress, but of a fragmentary conclave of members - who secure that two-thirds by unlawfully excluding from their seats those members who are not willing to commit perjury to destroy the Government - become not only greater than the Constitution, not only have power to destroy the Government, but can command, order, compel every other department of the Government to aid in the destrution. Was ever conclusion so lame, heresy so dangerous, or patriotism so self-destructive?

Henceforth, not the Constitution and the laws passed in pursuance thereof but the will of the two-thirds of Congress, or of a conclave taking forcible possession of the Capitol, shall be the supreme law of the land. Would it not be well to require us all, from the President down, to take an oath to support that will, instead of requiring us to swear to support the Constitution, and then compelling us, by the higher power of this will, to violate our oaths?

No Congress, not even a legitimate Congress, by even a unanimous vote, has power to destory States, to pass laws forbidden by the Constitution, nor to subvert the Government; and when they undertake it, and in the meanest and most dangerous of all ways - under cover of oaths and office - it is as much the duty of the President to suppress them as it is his duty to suppress an insurrection or an invasion. The contrary doctrine is a proclamation to Radicalism, that it shall be aided in its work even by the friends of the Constitution. It is a license to propagandism to bring all Constitution, governments, and people into complete subjection to its will.


Notes on the Situation, Number Twelve, Benjamin H. Hill's Life and Speeches by B. H. Hill, Jr.
T. H. P. Bloodworth, Atlanta, 1893, pages 764-768.